Opinion
251 4685/07.
02-16-2016
The PEOPLE of the State of New York, Respondent, v. Darryl SMITH, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.
Opinion
Judgment, Supreme Court, Bronx County (Ruth E. Smith, J.), rendered December 13, 2010, convicting defendant, after a jury trial, of rape in the first degree, and sentencing him to a prison term of 15 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 2007 ). There is no basis for disturbing the jury's credibility determinations. Defendant's acquittal of other charges does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 2000 ).
Defendant's argument regarding the sufficiency of his written consent to replacement of a juror with an alternate during deliberations is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we conclude that since defense counsel noted that he conferred with defendant, since the court confirmed that defendant consented to the replacement and had an opportunity to discuss the issue with counsel, and since he court obtained defendant's written signature on the consent form in open court, the inadvertent failure to circle “consent,” or cross out “do not consent” on a line reading “consent/do not consent” does not amount to a mode of proceedings error (CPL 270.351; compare People v. Page, 88 N.Y.2d 1, 643 N.Y.S.2d 1, 665 N.E.2d 1041 1996[lack of any writing] ). This trivial oversight did not violate the requirement of written consent to replacement of a deliberating juror (see N.Y. Const., art. I, § 2; CPL 270.351; People v. Ryan, 19 N.Y.2d 100, 104–105, 278 N.Y.S.2d 199, 224 N.E.2d 710 1966 ). The form plainly constituted written consent; the surplus “do not consent” language was meaningless, given that the form would serve no purpose where a defendant did not consent.
Defendant's challenge to the court's instruction to the jury following the substitution is likewise unpreserved. As an alternative holding, we find no basis for reversal (see People v. Copeland, 10 A.D.3d 588, 782 N.Y.S.2d 245 1st Dept.2004, lv. denied 4 N.Y.3d 743, 790 N.Y.S.2d 655, 824 N.E.2d 56 2004 ).
The court properly granted two challenges for cause by the People. Both panelists' answers revealed “opinions reflecting a state of mind likely to preclude impartial service” (People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932 2000 ), and their statements as a whole never established unequivocal assurances of impartiality (see e.g. People v. Acosta, 88 A.D.3d 483, 930 N.Y.S.2d 448 1st Dept.2011, lv. denied 19 N.Y.3d 861, 947 N.Y.S.2d 410, 970 N.E.2d 433 2012 ). “It is almost always wise ... to err on the side of disqualification because ‘the worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror’ ” (People v. Culhane, 33 N.Y.2d 90, 108 n. 3, 350 N.Y.S.2d 381, 305 N.E.2d 469 1973 ).
Based on our review of the victim's psychiatric records, we find that the trial court properly inspected them in camera and correctly concluded that they were irrelevant. There was no reasonable possibility the withheld materials could have led to an acquittal (see People v. McCray, 23 N.Y.3d 193, 198, 989 N.Y.S.2d 649, 12 N.E.3d 1079 2014; People v. Gissendanner, 48 N.Y.2d 543, 550, 423 N.Y.S.2d 893, 399 N.E.2d 924 1979 ).
We perceive no basis for reducing the sentence.